Who should do the work, usufructuaries or owner? Property law reform should avoid conflict

The House is expected to approve property law reform on Thursday at the initiative of Federal Justice Minister Koen Geens (CD & V). The text currently in force dates from 1804 and has hardly been modified since. The Royal Federation of Belgian Notaries even believes that “property law and is today the most anachronistic part of private law“and believes that its modernization was really necessary.

For Belgian notaries, the reform of property law will offer new possibilities, allowing them to meet the needs of all actors in the real estate sector. “This will expand the possibilities for having a creative legal framework for real estate projects in 2020“, explains Jan Sap, the director general of the Federation of Notaries (Fednot).

The new rules which should be voted on should help avoid certain conflicts, for example problems between neighbors.

It will also reform the “surface right”. This surface right consists in having buildings, works or plantations on (or under) the land of another person. For the moment, this surface right can only be granted for a maximum duration of 50 years.

This leads to practical problems, for example when a city wants to grant a surface right to the owner of an underground car park, a crèche, or a service residence. The city is obliged to limit this surface right to 50 years. A surface right could now be granted perpetually.

Changes to the application of usufruct

The reform could also avoid numerous conflicts between the usufructuary and the bare owner. For example, when one of the two parents dies, the surviving spouse obtains the usufruct on the family home while the children become the bare owners.

“There are regular discussions around who should pay for major repairs to the home. Today, it is the children who are responsible for these major repairs as bare owners. However, in some cases, they may never be able to access the accommodation themselves.“, explains the association notaire.be.

This is the case if the surviving spouse is young, which happens more and more regularly in the event of a blended family. After the reform, the usufructuary, that is to say the surviving spouse, will also be responsible for certain major repairs, taking into account his age (to know the value of the usufruct) and the value of the property.

A series of other disputes that take time to be resolved can be handled more quickly. The usufructuary may, for example, sell shares, if the price of these drops and this corresponds to prudent management. Traditionally, this was not possible, adds the association of Belgian notaries.

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